F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS April 12, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-4100 v. (D.C. No. 1:03-CR-62-004-TC) (D. Utah) CA RLO S ARM AN DO GA LAZ- FELIX, a/k/a Esteban Feliz-Urrea, a/k/a “Topo,”
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, HOL LOW A Y, and GORSUCH, Circuit Judges.
Defendant-Appellant Carlos Armando Galaz-Felix appeals his sentence of
360 months’ imprisonment followed by ten years’ supervised release resulting
from his conviction on counts involving violations of controlled substances,
immigration, and firearms laws. M r. Galaz-Felix argues that the recommended
Guidelines sentence w as improperly calculated by the district court because there
was insufficient evidence to justify: (1) its determination of the quantity of drugs
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. involved, (2) his leadership role in the conspiracy, (3) his possession of a firearm
in connection with the conspiracy, and (4) his obstruction of justice. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
Background
I. Procedural History
On M ay 3, 2003 a grand jury returned a thirteen-count indictment charging
M r. Galaz-Felix and thirteen others with various violations of the controlled
substances, immigration, and firearms laws of the United States. M r. Galaz-Felix
was specifically charged with conspiracy to distribute 500 grams or more of a
mixture or substance containing methamphetamine in violation of 21 U.S.C. §§
846 and 841(a)(1) (Count 1), possession of a firearm by an illegal alien in
violation of 18 U.S.C. § 922(g)(5) (Count 8), fraudulent use of a visa in violation
of 18 U.S.C. § 1546 (Count 9), and unlaw ful reentry by a deported alien in
violation of 8 U.S.C. § 1326 (Count 11). Aplt. App. at 104-16. The government
dismissed Count 9 prior to trial, and M r. Galaz-Felix was subsequently convicted
by a jury on Counts 1, 8, and 11.
The district court sentenced M r. Galaz-Felix to life imprisonment. Id. at
118. M r. Galaz-Felix appealed, alleging three points of error: (1) that the district
court should have suppressed certain evidence seized from his house, (2) that the
district court improperly admitted drug ledgers into evidence pursuant to Fed. R.
-2- Evid. 801(d)(2), and (3) that the district court improperly enhanced his sentence
based on judge-found facts and applied the Sentencing Guidelines in a mandatory
fashion. See United States v. Galaz-Felix, 160 F.App’x. 787 (10th Cir. 2005).
W e affirmed the district court’s denial of the motion to suppress and its admission
of the drug ledgers, see id. at 789-90, but we remanded for resentencing in light
of United States v. Booker, 543 U.S. 220 (2005) 1 , which was handed down while
the appeal was pending.
The jury found M r. Galaz-Felix guilty of conspiring to distribute 500 grams
or more of methamphetamine. This offense has a base offense level of 32 under
the Guidelines, assuming M r. Galaz-Felix conspired to distribute only the
minimum 500 grams of methamphetamine. See U.S.S.G. § 2.D1.1(c)(4). At the
original sentencing, however, the district court, adopting the recommendation of
the Presentence Investigation Report (PSR ), determined that the conspiracy
actually involved an amount of drugs equivalent to 441,179.2 kilograms of
marijuana, 2 which resulted in a base offense level of 38. See id. § 2D1.1(c)(1).
1 Booker held that it is unconstitutional to enhance a defendant’s sentence based on judge-found facts, other than the fact of a prior conviction, in the context of a mandatory sentencing regime. See United States v. Visinaiz, 428 F.3d 1300, 1315 (10th Cir. 2005). In Booker, the Supreme Court rendered the Guidelines advisory as a remedy to the problem. Booker, 543 U.S. at 264. 2 In this case, the conspiracy involved methamphetamine, cocaine, and narcotic mushrooms. Accordingly, the district court converted the various drugs into marijuana equivalent for purposes of determining a base offense level. See U.S.S.G. § 2D1.1, cmt. n.10 (“The Drug Equivalency Tables . . . provide a means for combining differing controlled substances to obtain a single offense level.”).
-3- The district court also adopted the PSR’s recommendation of a four-level
enhancement for M r. G alaz-Felix’s leadership role in the conspiracy, see id. §
3B1.1(a), a two-level enhancement for his possession of a firearm in connection
with the offense, see id. § 2D1.1(b)(1), and a two-level enhancement for
obstruction of justice, stemming from M r. Galaz-Felix’s testimony at the hearing
on the motion to suppress, see id. § 3C1.1. These enhancements raised M r.
Galaz-Felix’s offense level from 38 to 46. Given that M r. Galaz-Felix’s criminal
history was a category II, the resulting Guidelines recommendation was a
sentence of life imprisonment, which the district court imposed.
On remand, the district court reviewed the sentencing record and found the
same quantity of marijuana equivalent, the same enhancements, and the same
Guidelines recommendation of life imprisonment. After considering the factors
in 18 U.S.C. § 3553(a), the district court sentenced M r. Galaz-Felix to serve 360
months’ imprisonment followed by ten years’ supervised release. In this second
appeal, M r. Galaz-Felix challenges the factual basis supporting the district court’s
drug quantity determination and the three enhancements.
II. The Conspiracy
M r. Galaz-Felix arrived in the Ogden, Utah area in December, 2002. 3
Shortly thereafter, he was observed at an Ogden apartment at 1095 16th Street,
3 M r. Galaz-Felix had previously been deported from the United States in June 1998. That deportation followed a conviction for a second-degree felony committed in W eber County, Utah.
-4- which was rented by co-defendant Julio Lopez and occupied by co-defendants
Israel Gomez-Astorga and Juan Ulvado-Tapia. In December 2002, the
apartment’s owner, M ichael Hurst, visited the apartment and was greeted by M r.
Galaz-Felix, who gave M r. H urst a small amount of crystal methamphetamine.
On January 3, 2003, M r. Galaz-Felix rented his own house at 3464 Grant Avenue
in Ogden.
On January 8, 2003, a consent search was conducted on the apartment at
1095 16th Street by officers of the W eber-M organ Narcotics Strike Force. During
the search, officers found approximately three pounds of crystal
methamphetamine and numerous documents pertaining to co-defendants M r.
Lopez, M r. Gomez-Astorga, and M r. Ulvado-Tapia. In a recorded phone call on
January 14, 2003, between M r. Gomez-Astorga (who was jailed) and M r. Lopez,
M r. Gomez-Astorga complained that M r. Galaz-Felix was not doing enough to
help him.
During the course of surveillance and wiretaps conducted on the phones of
co-defendants Jose Aparicio and Dean Ramirez during February and M arch 2003,
officers became aware of M r. Galaz-Felix’s involvement in certain drug offenses
they were investigating. For example, on M arch 5, 2003, officers intercepted a
phone call between M r. Aparicio and M r. Galaz-Felix, in w hich M r. Galaz-Felix
advised M r. A parico that a supply of drugs had arrived from his brother, a
fugitive co-defendant named Esteban Galaz-Felix (aka “Genaro”), that M r.
-5- Ramirez had part of the shipment, and that M r. Aparicio should not let M r.
Ramirez tell him otherwise. On M arch 29, 2003, officers intercepted a call
between M r. Ramirez and M r. Lopez, in which both complained that M r. Galaz-
Felix was aggressively collecting money from them.
Later, on April 13-14, 2003, M r. Galaz-Felix moved a quantity of drugs
consisting of ten or eleven packages from his house to M r. Ramirez’s auto-body
shop, where M r. Ramirez took them for safekeeping. The next day, M r. Galaz-
Felix complained to Genaro that M r. Ramirez had taken control of the drugs. M r.
Ramirez subsequently returned the drugs to M r. Galaz-Felix. In mid-April, 2003,
an investigation occurred at the home of M artin Villafuentes, who stored cash and
drugs for M r. Galaz-Feliz. In an intercepted phone call between M r. Ramirez and
Genaro, M r. Ramirez stated that after officers visited M r. Villafuentes’ house,
M r. Galaz-Felix told M r. Ramirez, “I need a favor–for you to stash this for me
over there,” and M r. Ramirez replied, “Then bring it. You know I’m not going to
tell you no.” II Aplee. Supp. App. at 435.
Several days later, on April 18, 2003, officers visited M r. Galaz-Felix’s
house. Their primary objective was to identify M r. Galaz-Felix and to obtain
consent to search his house. M r. Galaz-Felix and his wife gave the officers
permission to search their house. During the search, the officers found a
semiautomatic pistol in a suitcase on the top shelf of M r. Galaz-Felix’s bedroom
closet. In the same room, the officers located a quantity of cash and several notes
-6- and a notebook that officers testified were “pay-owe” sheets relating to the
distribution of drugs. In a spare bedroom, the officers found two plastic-wrapped
packages each containing approximately $10,000 in cash. The officers also found
a plastic w rapping in a trash can with a notation indicating it had previously
contained cash. In the cellar of the house, the officers found a slashed car tire, to
which a drug dog alerted. They also found a partially completed hole in the floor,
in which objects could be hidden.
The notes and notebook, otherw ise referred to at trial as the “drug ledgers,”
detailed the arrival and distribution of substantial shipments of multi-pound
quantities of crystal methamphetamine. They also detailed how many one-pound
packages arrived in a given shipment, to whom they were distributed, and what
each recipient was charged per pound. The records also indicated that M r. Lopez
was given $10,000 to hire an attorney for M r. Gomez-Astorga and M r. Ulvado-
Tapia.
M r. Galaz-Felix was subsequently arrested. In calls placed to M r. Ramirez
from jail, M r. Galaz-Felix confirmed both the contents of the drug ledgers and his
authorship of the documents. On April 19, 2003, he phoned M r. Ramirez and
gave precise information regarding outstanding debts and quantities for various
individuals, as well as the unit price each individual was charged. The
information conveyed in the call matched the information contained in the drug
ledgers. In another call, on April 21, 2003, M r. Galaz-Felix told M r. Ramirez that
-7- officers had taken the drug ledgers but he assured M r. Ramirez that M r.
Ramirez’s name did not appear in them.
Also during the call on April 19, M r. Galaz-Felix instructed M r. Ramirez to
collect payment from an individual named in the drug ledgers and identified as
“Pollo.” In subsequent calls, M r. Ramirez explained how he attempted to collect
money from Pollo, and eventually reported his success to M r. Galaz-Felix in a
call on April 21, 2003. In the same call, M r. Ramirez told M r. Galaz-Felix that
M r. Gomez-Astorga w anted a new lawyer. M r. Galaz-Felix responded that M r.
Gomez-Astorga would just “ha[ve] to deal with that.” Id. at 464, 467.
Discussion
After Booker, we review sentences for reasonableness. United States v.
Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). Reasonableness
includes both substantive and procedural elements. United States v. M ateo, 471
F.3d 1162, 1166 (10th Cir. 2006). “W e determine substantive reasonableness by
reference to the actual length of the sentence imposed in relation to the sentencing
factors enumerated in 3553(a).” Id. These factors “include the nature of the
offense and characteristics of the defendant, as well as the need for the sentence
to reflect the seriousness of the crime, to provide adequate deterrence, to protect
the public, and to provide the defendant with needed training or treatment.”
Kristl, 437 F.3d at 1053 (citing § 3553(a)). A sentence w ithin the advisory
-8- Guidelines range carries a presumption of substantive reasonableness. Id. at
1055.
“In order to be procedurally reasonable, a sentence must be reasoned, or
calculated utilizing a legitimate method.” M ateo, 471 F.3d at 1166. Although the
Guidelines are no longer mandatory, district courts must consult them and
consider them as another factor w hen sentencing. Booker, 543 U.S. at 264.
Consequently, “sentences based on miscalculations of the G uidelines are
considered unreasonable because the manner in which they were determined was
unreasonable.” United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006)
(internal quotations and alterations omitted).
Because M r. Galaz-Felix challenges only the sufficiency of the evidence
supporting the district court’s determination of his base offense level under the
Guidelines, his challenge is really one that the advisory Guidelines sentence was
improperly calculated. Thus, we must review for procedural reasonableness,
analyzing the district court’s factual findings supporting the drug quantity and the
enhancements for clear error. See Kristl, 437 F.3d at 1055. Given the posture of
M r. Galaz-Felix’s argument, 4 if there was sufficient evidence for the drug
quantity and the enhancements, then the Guidelines calculation is correct and w e
need not proceed to analyze the sentence for substantive reasonableness. If,
4 M r. Galaz-Felix does not argue that the sentence is substantively unreasonable based on the factors contained in 18 U.S.C. § 3553(a).
-9- however, there was insufficient evidence to support the enhancements, then the
Guidelines calculation was in error, and we must reverse unless the error was
harmless. Kristl, 437 F.3d at 1054-55.
I. The Drug Quantity Determination
“In a controlled substances case, a defendant is accountable for all
quantities of contraband with which he was directly involved and, in the case of
[a conspiracy], all reasonably foreseeable quantities of contraband that were
within the scope of the criminal activity that he jointly undertook.” United States
v. Lauder, 409 F.3d 1254, 1267 (10th Cir. 2005) (citing U.S.S.G. § 1B1.3, cmt.
n.2). The government must prove the amount of drugs attributable to M r. Galaz-
Felix by a preponderance of the evidence. Id. W e review the district court’s
findings on drug quantity for clear error. Id.
As previously stated, the district court determined that M r. Galaz-Felix’s
offense involved an amount of methamphetamine and other drugs equivalent to
441,179.2 kilograms of marijuana. Under U.S.S.G. § 2D1.1(a)(3), the district
court was required to assign to M r. Galaz-Felix the base offense level specified
by the Drug Quantity Table for the amount of marijuana involved in his crime.
The maximum offense level allowed by the Drug Quantity Table is 38 (the
offense level assigned to M r. Galaz-Felix). This offense level is assigned to an
offense involving 30,000 kilograms or more of marijuana. See U.S.S.G. §
2D1.1(c)(1).
- 10 - Accordingly, in order to impose an offense level of 38, the district court
had only to find, by a preponderance of the evidence, that M r. Galaz-Felix’s
offense involved an amount of methamphetamine and other drugs equivalent to
30,000 kilograms of marijuana. Thus, the 441,179.2 kilograms of marijuana
equivalent the district court actually found is, to say the least, more than adequate
to trigger an offense level of 38. Because any greater amount of marijuana
equivalent is superfluous, an error in its calculation would be harmless. See
United States v. Guevara, 277 F.3d 111, 125 (2d Cir. 2001), amended on reh’g,
298 F.3d 182 (2002), cert. denied, 538 U.S. 936 (2003).
In his first appeal, M r. Galaz-Felix argued that the drug ledgers w ere
improperly admitted because there was insufficient evidence to show that he
authored them. See Galaz-Felix, 160 F.App’x. at 790. W e rejected this
argument, holding: “Ample evidence in the record connects Galaz-Felix to the
drug ledgers. . . . Here, a preponderance of the evidence establishes that Galaz-
Felix authored the ledgers or, at least, manifested a belief in their truth.” Id. In
this appeal, M r. Galaz-Felix argues that the drug ledgers are insufficiently
connected to him. This argument is foreclosed by our previous determination
under the “law of the case” doctrine. See Roth v. Green, 466 F.3d 1179, 1187
(10th Cir. 2006).
The drug ledgers indicate that 28 pounds of drugs were received and
distributed to various members of the conspiracy. I Aplee. Supp. App. at 259-62;
- 11 - II Aplee. Supp. App. at 314-15. The ledgers also indicate another shipment of 23
pounds of drugs was received, of w hich 18 pounds were distributed and another 5
kept in storage. I A plee. Supp. App. at 268-71; II A plee. Supp. App. at 326-27.
On subsequent pages, the drug ledgers detailed each distributor’s individual
account and fix a price per unit for the drugs, which allow ed officers to surmise
that the drugs referenced in the ledgers were crystal methamphetamine (based on
street value). I Aplee. Supp. App. at 274-76; II Aplee. Supp. App. at 328-33.
Based on the price per unit, the PSR determined that the crystal
methamphetamine was “ice,” a term referring to a methamphetamine mixture that
is at least 80% pure d-methamphetamine hydrochloride. See U.S.S.G. § 2D1.1(c)
n.C. For purposes of determining the base offense level, 1 gram of “ice” is
equivalent to 20 kilograms of marijuana. Id. § 2D1.1, cmt. n.10. The PSR did
not consider the 5 pounds of methamphetamine kept in storage, but instead found
a total of 46 pounds of methamphetamine linked to M r. Galaz-Felix through the
drug ledgers. Forty-six pounds equals roughly 20.8 kilograms, or 20,800 grams. 5
Assuming the methamphetamine was “ice,” then the marijuana equivalent is
approximately 416,000 kilograms. Only 30,000 kilograms of marijuana
equivalent is required to trigger a base offense level of 38. See id. § 2D1.1(c)(1).
Even if the methamphetamine was not “ice,” and instead was simply a low grade
mixture including a smaller percentage of methamphetamine, the amount would
5 1 lb. = 0.45359 kg, 1kg = 1,000 g.
- 12 - still be equivalent to approximately 41,000 kilograms of marijuana; again, more
than enough to trigger the base offense level of 38. 6
M r. Galaz-Felix, while arguing that the district court’s factual findings
regarding the drug quantity and enhancements are “vague and conclusive,” offers
little more in response than quotations from the district court’s colloquy at the
sentencing hearing. In the colloquy, it is clear that the district court considered
M r. Galaz-Felix’s arguments, and we are persuaded that the drug amounts
described in the drug ledgers could fairly be attributed to him. Post-Booker, a
district court may make drug quantity determinations for sentencing purposes
based on a preponderance of the evidence. See United States v. Rockey, 449 F.3d
1099, 1104 (10th Cir. 2006). Given our previous determination that there was
sufficient evidence connecting M r. Galaz-Felix to the drug ledgers and the
substantial evidence indicating that the drug ledgers described, at a minimum, 46
pounds of some form of methamphetamine, we find that the district court did not
commit clear error in calculating the drug quantity. 7
6 One gram of a mixture or substance containing less than 80% pure methamphetamine is equivalent to 2 kilograms of marijuana. See § 2D1.1 cmt. n.10. Thus, 20,800 grams of such a substance is equivalent to 41,600 kilograms of marijuana (20,800 X 2 = 41,600). 7 To be sure, there was additional evidence connecting M r. Galaz-Felix to other amounts of methamphetamine, narcotic mushrooms, and cocaine. W e need not determine the sufficiency of this evidence, as the drug quantities linked to M r. Galaz-Felix through the drug ledgers are more than adequate to trigger the base offense level 38.
- 13 - II. The Leader/Organizer Enhancement
To apply the leader/organizer enhancement, the district court must find
that: (1) the “criminal activity . . . involved five or more participants or was
otherw ise extensive,” and (2) that the defendant was an “organizer, leader,
manager, or supervisor of one or more other participants,” or the defendant
otherwise “exercised management responsibility over the property, assets or
activities of the criminal organization.” United States v. W ilfong, 475 F.3d 1214,
1218 (10th Cir. 2007) (citing U.S.S.G. § 3B1.1(a) & cmt. n.2). In this case, the
district court considered two of the intercepted phone conversations in
determining that M r. Galaz-Felix was a leader or organizer. The first was
between M r. Lopez and M r. Ramirez, where the two complained that M r. Galaz-
Felix was always trying to collect money from them. The second was the phone
call in which M r. Galaz-Felix detailed to M r. Ramirez the quantities of drugs held
outstanding by each member of the organization and what each was to pay. In
this same phone call, M r. Galaz-Felix instructed M r. Ramirez to collect money
from the individual named “Pollo.”
Based on these phone calls, and its impression of all the evidence
presented, the district court found that M r. Galaz-Felix was “the watchdog sent by
his brother [Genaro], who was the M exican kingpin in M exico ,” Aplt. App. at
152, and that “M r. Galaz-Felix was very much one of the main heads, if not the
main head,” id. at 155. Although the evidence relied upon by the district court
- 14 - was sufficient to show that M r. Galaz-Felix controlled or supervised several
individuals, there was also evidence that M r. Galaz-Felix exercised management
responsibility; he kept the organization’s records (the drug ledgers) and its money
(the wrapped bills). Furthermore, it appears uncontested that the conspiracy
involved some thirteen other individuals. There was clearly sufficient evidence to
establish the leader/organizer enhancement, and the district court did not commit
clear error.
III. The Firearm Enhancement
U.S.S.G. § 2D1.1(b)(1) instructs that “if a dangerous weapon (including a
firearm) was possessed, increase by 2 levels.” The “adjustment should be applied
if the weapon was present, unless it is clearly improbable that the weapon was
connected to the offense.” Id. § 2D1.1, cmt. n.3. The government bears the
initial burden of proving possession of the weapon by a preponderance of the
evidence. United States v. W illiams, 431 F.3d 1234, 1237 (10th Cir. 2005).
“This burden is satisfied when the government demonstrates that a temporal and
spatial relation existed between the weapon, the drug trafficking activity, and the
defendant.” Id. (internal quotations omitted). The government “need only show
that the weapon was found in the same location where drugs or drug paraphernalia
[were] stored.” United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1186-87
(10th Cir. 2004) (internal quotation marks omitted). If the government meets its
burden, then the defendant must show “that it is clearly improbable the weapon
- 15 - was connected with the offense.” W illiams, 431 F.3d at 1238.
In this case, it is undisputed that M r. G alaz-Felix possessed a firearm.
After all, he was convicted of illegally possessing a firearm (Count 8). The
district court found that the enhancement was appropriate because “at the time
[the pistol] was found, it was following a domestic dispute between M r. Galaz-
Felix and his wife. And that hidden area I think the evidence was clear had been
used to keep drugs at some point, but there might have been some sort of cleaning
out . . . .” Aplt. App. at 151. Indeed, the pistol was found in the same room
where the drug ledgers were located. The bundles of money were found in an
adjacent room only twenty feet away. The district court also correctly recalled
that there was evidence that M r. Galaz-Felix had, prior to the search, spirited
drugs aw ay from his house for safekeeping with M r. Ramirez. Obviously, there
was sufficient evidence that the firearm was found in a location where drugs or
drug paraphernalia w ere stored. The district court did not commit clear error in
applying the firearm enhancement.
IV. The Obstruction of Justice Enhancement
U.S.S.G. § 3C1.1 mandates a two-level increase if “the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice during the course of the investigation, prosecution, or sentencing of the
instant offense of conviction . . . .” “Committing, suborning, or attempting to
suborn perjury,” triggers the obstruction of justice enhancement. Id. § 3C1.1,
- 16 - cmt. n.4. For purposes of this enhancement, perjury occurs when “[a] witness
testifying under oath or affirmation . . . gives false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507
U.S. 87, 94 (1993), abrogated on other grounds, United States v. W ells, 519 U.S.
482 (1997). W e have said that the district court must “be explicit about which
representations by the defendant constitute perjury.” United States v.
Hawthorne, 316 F.3d 1140, 1146 (10th Cir. 2003).
In this case, the district court concluded that M r. Galaz-Felix offered
perjured testimony at the suppression hearing held on October 17, 2003. The
district court stated:
Now the obstruction. I covered that in my order [denying] the motion to suppress. I found that M r. Galaz-Felix’s recounting of the events during the search, particularly his description of his -- the consent issue, and that’s spelled out very clearly in the order, was not credible.
And what I mean by that and what I meant by that was he -- his testimony was perjurious. It didn’t happen that way. The evidence was very clear that it did not . . . .
[I]t’s spelled out quite clearly what the testimony was and in my order, and I would incorporate that by reference. [H]e was trying to defeat the motion to suppress in a way that was not truthful.
Aplt. App. at 155, 157.
Specifically, the district court found perjurious: (1) M r. Galaz-Felix’s
testimony that an officer claimed to have a search “warrant he himself had
- 17 - signed,” II Aplee. Supp. App. at 560, (2) that officers instructed M r. Galaz-Felix
to remain in place, id. at 563, (3) that the officers searched M r. Galaz-Felix’s
house without permission, id., and (4) that M r. Galaz-Felix attempted to get an
attorney and asked the officers for permission to do so, id. at 483, 562. The
district court explicitly identified this testimony in its order denying the motion to
suppress, id. at 484-87, and incorporated these findings relative to the obstruction
of justice enhancement.
W hile M r. Galaz-Felix argues in this appeal that the officers lied about the
facts concerning the search of his house, we stated in our opinion addressing M r.
Galaz-Felix’s first appeal that “[the district court] concluded [t]he only credible
evidence in the record suggests that M r. Galaz simply, and voluntarily, agreed to
let the officers inside the house. . . . [T]he district court’s factual findings and
credibility determinations are not clearly erroneous.” G alaz-Felix, 160 F.App’x
at 790. M r. Galaz-Felix also argues that the obstruction of justice enhancement
was based on his w ife’s testimony, not his own. Aplt. Br. at 27. This is simply
not correct. The record reflects that the district court considered specific
testimony offered by M r. G alaz-Felix and concluded it w as perjurious.
The district court based its obstruction of justice enhancement largely on its
determinations that M r. Galaz-Felix was not credible and that his testimony
appeared “over the top.” II Aplee. Supp. App. at 486. W e agree with the district
court that M r. Galaz-Felix’s account of the search is “completely inconsistent
- 18 - w ith customary police practice.” Id. at 487. In any event, given the deference w e
must afford the district court’s credibility determinations, see United States v.
Vaziri, 164 F.3d 556, 567 (10th Cir. 1999), we conclude that the district court did
not commit clear error in applying the obstruction of justice enhancement.
A FFIR ME D.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge
- 19 -